The Indissoluble Unity of the Spanish Nation . . . and the European Union?

Following an emergency cabinet meeting last week, Spanish Prime Minister Mariano Rajoy detailed plans to apply Article 155 of the Spanish Constitution in Catalonia, escalating the country’s most serious constitutional crisis since the restoration of democracy in 1977.[1] The article, that has never before been used, enables the central government in Madrid to take direct control of a region’s internal affairs if the latter is in breach of the law.[2] The announcement comes days after the Spanish Supreme Court (“Tribunal Supremo de España”) ruled on the legality of Catalonia’s independence referendum. In its decision last week, the Court held that the “Self-Determination Referendum Law” (“Llei del Referèndum d’Autodeterminació”), passed in Catalonia’s regional parliament in September, was contrary to the Spanish Constitution, which describes the country as indivisible.[3] The judgement affirmed an earlier ruling from the Superior Court of Justice of Catalonia (“Tribunel Superior de Justícia de Catalunya”).[4] Spain’s Senate is expected to approve Rajoy’s plans to restore constitutional order later this week.[5]

The article, composed of only two short and vaguely defined paragraphs, states that if a regional government “does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in any way that is seriously prejudicial to the general interest of Spain” the government may “take all measures necessary” to force a regional government to comply.[6] Given the lack of precedent, there is much debate among legal experts regarding exactly how the central government in Madrid can suspend or remove the powers of the Catalan authorities.[7]

The political crisis in Catalonia and how it is resolved will have an impact on the EU, not just Spain. The EU requires that its members guarantee “stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities.”[8] If a member violates this obligation, the EU can act under articles 2 and 7 of the Treaty of the European Union and initiate infringement procedures.[9] In December 2016, the European Court of Justice (ECJ) recognised the customary principle of self-determination articulated in Article 1 of the Charter of the United Nations as a legally enforceable right in the EU.[10] Consequently, Spain’s constitutional restraints on Catalonian attempts at separation could be construed as preventing democratic expression in violating of the Treaty of the European Union. However, the decision has yet to be tested in relation to separatist movements across Europe and is unlikely to be applied to the Catalonia’s October referendum due to irregular voting procedures.[11] Further, the president of the European Commission, Jean-Claude Juncker, has suggested that the issue of Catalonian independence is a domestic issue stating that the EU will not intervene if calls to mediate come from only one side.[12]

The question of Catalonian independence also threatens to bring new instability to the Eurozone. Catalonia is one of Spain’s richest and most highly industrialised regions accounting for nineteen percent of Spain’s GDP.[13] Its €215.6 billion ($253.6 billion) economy is larger than that of most countries in the Eurozone.[14] Catalonia also accounts for more than twenty-five percent of both Spain’s total exports and inward investment.[15] The result of the October referendum threatens to destabilise Spain’s fragile economy. The political crisis in Spain may, at a minimum, deter foreign investment, impact its credit rank, and weaken the ability central government’s ability to pass its national budget.[16] Otherwise, a Catalonian declaration of independence would result the revocation of the region’s EU membership.[17] A newly independent state must follow the arduous accession procedures laid out by the EU, and acceptance would require the agreement of every other member state – including Spain.[18] The practical consequences of which would likely have far-reaching implications as several other European states face the challenges posed by their own separatist movements.

The fall of the Soviet Union and the dissolution of Yugoslavia created new countries in Eastern Europe. By contrast, borders in Western Europe have remained largely stable. Yet, this foundation is being challenged by separatist movements across Europe. The 2007-09 financial crisis, austerity, and migration have allowed populist Eurosceptic parties to feed off discontent with political elites and reopen regional divisions. There is growing concern among European leaders that the political situation is Spain will fuel further splits and divisions within the EU. Jean-Claude Juncker has urged Rajoy and his government to bring the situation under control.[19] However, this week leaders of the secessionist campaign have stated that they will defy any attempt by the central government in Madrid to enforce direct rule in the region.[20] “Uncertainty,” it seems, will continue to be Europe’s buzzword for 2017.